The Elevator Is Constantly Out of Order. Can I Break My Lease?
Q: My husband and I moved into a seventh-floor rental apartment in a prewar building in Riverdale last fall. The building has one elevator, which was replaced just a few years ago, but it has been breaking down at least once a week since December. We’re aging up toward 70, and with an older dog in the apartment, seven flights up and down a few times a day is taking a toll. Can we break our two-year lease and not be held to the agreement based on this ongoing issue?
A: You have several options worth exploring. In New York State, seniors have certain “special rights” when it comes to renting apartments. For example, depending on where you see yourself living next, tenants who are at least 62 years old may terminate their lease without penalty if they’re moving into a health care facility, senior housing complex or government subsidized housing, said Andrew Scherer, a professor of law at New York Law School and the author of “Residential Landlord-Tenant Law in New York.”
Because the faulty elevator has created a health hazard, you also could potentially break your lease and claim that you have been “constructively evicted,” Mr. Scherer said. According to Cornell Law School’s Legal Information Institute, constructive eviction can be claimed in court when a tenant has moved out of a rental unit over an issue that caused the unit to become unlivable, and the landlord has failed to resolve the problem despite being notified.
Mr. Scherer noted that the landlord is legally obligated to to relet the apartment if you leave before the lease ends. “The tenant will not be liable for rent for the remainder of the lease if the landlord either relets the apartment or fails to take reasonable steps to relet,” he said, though he suggested consulting an attorney before pursuing any legal option.
If you choose to stay, there are other routes you could take. Failure to keep the elevator functioning “is a breach of the landlord’s obligation to maintain the residence,” Mr. Scherer said. So you could be entitled to a reduction of rent for the months you’ve gone without it working properly. You also could band with your neighbors and form a tenants’ association to “commence a legal proceeding to obtain a court order to force the landlord to fix the problem,” he said. You could do this alone, too, but having more people on board will only help your chances.
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